AGREEMENT OF LIMITED PARTNERSHIP OF PACIFIC OFFICE PROPERTIES, L.P. a Delaware limited partnership dated as of , 2007

Exhibit 99.1

 

AGREEMENT OF LIMITED PARTNERSHIP

OF

PACIFIC OFFICE PROPERTIES, L.P.

a Delaware limited partnership

dated as of                      , 2007

TABLE OF CONTENTS

 

 

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AGREEMENT OF LIMITED PARTNERSHIP

OF

PACIFIC OFFICE PROPERTIES, L.P.

THIS AGREEMENT OF LIMITED PARTNERSHIP OF PACIFIC OFFICE PROPERTIES, L.P., a Delaware limited partnership, effective as of                      , 2007 (the “ Effective Time ”), is entered into by and among Pacific Office Properties Trust, Inc., a Maryland corporation (defined herein as the “ General Partner ”), as the general partner of and a limited partner in the Partnership, and POP Venture, LLC, a Delaware limited liability company, as the initial limited partner of the Partnership, together with any other Persons who become Partners in the Partnership as provided herein.

RECITALS

A.      The General Partner is making a Capital Contribution to the Partnership in exchange for a General Partner’s Interest.

B.      The initial Limited Partner is POP Venture, LLC, a Delaware limited liability company, which is contributing certain indirect interests in real property pursuant to the terms and subject to the conditions set forth in the Master Agreement.

C.      The General Partner has determined that it is in the best interest of the Partnership and the Partners to enter into this Agreement.

AGREEMENTS

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the General Partner and each Person subsequently joining this Agreement as a Partner hereby agree as follows:

 

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DEFINITIONS .

As used in this Agreement, the following terms shown have the meanings set forth in this Section 1 .

“ Act ” means the Delaware Revised Uniform Limited Partnership Act, as it may be amended from time to time, and any successor to such statute.

“ Actions ” has the meaning set forth in Section 7.6.1 hereof.

“ Additional Funds ” has the meaning set forth in Section 4.5.1 .

“ Additional Limited Partner ” means a Person who is admitted to the Partnership as a Limited Partner pursuant to Section 4.4 and Section 12.2 hereof and who is shown as such on the books and records of the Partnership.

“ Adjusted Capital Account ” means, with respect to any Partner, the balance in such Partner’s Capital Account as of the end of the relevant Fiscal Year or any other point of determination, after giving effect to the following adjustments:

(i) credit to such Capital Account any amounts that such Partner is obligated to restore pursuant to this Agreement or by operation of law upon liquidation of such Partner’s Partnership Interest or is deemed to be obligated to restore pursuant to the penultimate sentence of each of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and

(ii) debit to such Capital Account the items described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).

The foregoing definition of Adjusted Capital Account is intended to comply with the requirements of the alternate test for economic effect contained in Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

“ Adjusted Capital Account Deficit ” means, with respect to any Partner, the deficit balance, if any, in such Partner’s Adjusted Capital Account.

“ Advisor ” means Pacific Office Management, Inc., a Delaware corporation, or any successor-in-interest thereto or permitted assignee of Pacific Office Management, Inc.’s interest in and obligation under the Advisory Agreement.

“ Advisory Agreement ” means that certain Advisory Agreement that the Partnership currently anticipates entering into with the Advisor and the General Partner, as the same may be amended or supplemented from time to time.

“ Affiliate ” shall mean with respect to a specified Person, a Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Person specified and shall have such additional meaning as such term has under Rule 12b-2 under the Exchange Act.

“ Agreement ” means this Agreement of Limited Partnership of Pacific Office Properties, L.P., as it may be amended, supplemented, restated or otherwise modified from time to time.

“ Applicable Percentage ” has the meaning set forth in Section 8.5.4 .

“ Articles of Incorporation ” means the Articles of Incorporation of the General Partner filed with the State Department of Assessments and Taxation of Maryland, as amended, supplemented or restated from time to time.

“ Assignee ” means a Person to whom one or more Partnership Units have been Transferred in a manner permitted under this Agreement, but who has not become a Substituted Limited Partner, and who has the rights set forth in Section 11.5 hereof.

“ Business Day ” means any day except a Saturday, Sunday or other day on which commercial banks in Honolulu, Hawaii are authorized or required by law to close.

 

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“ Capital Account ” means, with respect to any Partner, the capital account established and maintained for such Partner in accordance with Section 4 .

“ Capital Account Deficit ” has the meaning set forth in Section 13.2.3 .

“ Capital Contribution ” means, with respect to any Partner, the sum of (i) the cash, cash equivalents and promissory obligations, plus (ii) the initial Gross Asset Value of any Contributed Property, plus (iii) the Net Equity Value of any Contributed Interests, in each such case, that such Partner contributes to the Partnership or is deemed to have contributed pursuant to Section 4 hereof.

“ Cash Amount ” has the meaning set forth in Section 8.5.1 and Section 8.5.2 , as applicable.

“ Certificate ” means the Certificate of Limited Partnership of the Partnership filed in the office of the Secretary of State of the State of Delaware, as amended from time to time in accordance with the terms hereof and the Act.

“ Class A Conversion Price ” means, as of any date of determination, an amount equal to the quotient obtained by dividing the Class A Convertible Preferred Unit Liquidation Preference Amount by the Class A Convertible Preferred Unit Conversion Factor. As of the date of this Agreement, the initial Class A Conversion Price is $3.49 (i.e., $25.00 divided by 7.1717).

“ Class A Convertible Preferred Unit ” means a fractional share of the Partnership Interests that has the rights and designation, including distribution rights and rights upon liquidation, winding up and dissolution, that are superior or prior to the Common Units, as more specifically described in Section 4.3 .

“ Class A Convertible Preferred Unit Conversion Factor ” means the number equal to 7.1717; provided , however , if at any time:

(i)      the General Partner (a) declares or pays a distribution on its Common Units in Common Units or makes a distribution to all holders of its Common Units in Common Units, (b) splits or subdivides its Common Units or (c) effects a reverse stock split or otherwise combines its Common Units into a smaller number of Common Units, then the Class A Convertible Preferred Unit Conversion Factor shall be adjusted by multiplying the Class A Convertible Preferred Unit Conversion Factor previously in effect by a fraction (A) the numerator of which shall be the number of Common Units on the record date for such dividend, distribution, split, subdivision, reverse split or combination (assuming for such purposes that such dividend, distribution, split, subdivision, reverse split or combination has occurred as of such time) and (B) the denominator of which shall be the actual number of Common Units (determined without the above assumption) on the record date for such dividend, distribution, split, subdivision, reverse split or combination;

(ii)      the General Partner distributes any rights, options or warrants to all holders of its Common Units to subscribe for or to purchase or to otherwise

 

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acquire Common Units (or other securities or rights convertible into, exchangeable for or exercisable for Common Units) at a price per share less than the Value of a Common Unit on the record date for such distribution (each a “ Distributed Right ”), then the Class A Convertible Preferred Unit Conversion Factor shall be adjusted by multiplying the Class A Convertible Preferred Unit Conversion Factor previously in effect by a fraction the numerator of which shall be the sum of (A) the number of Common Units issued and on the record date plus (B) the maximum number of Common Units purchasable under such Distributed Rights, and the denominator of which shall be the sum of (1) the number of Common Units on the record date, plus (2) a fraction, the numerator of which equals the product of (x) the maximum number of Common Units purchasable under such Distributed Rights multiplied by (y) the minimum purchase price per Common Unit under such Distributed Rights, and the denominator of which is the Value of a Common Unit as of the record date; provided , however , that, if any such Distributed Rights expire or become no longer exercisable, then the Class A Convertible Preferred Unit Conversion Factor shall be adjusted, effective retroactively to the date of distribution of the Distributed Rights, to reflect a reduced maximum number of Common Units or any change in the minimum purchase price for the purposes of the above fraction;

(iii)      the General Partner shall, by dividend or otherwise, distribute to all holders of its Common Units evidences of its indebtedness or assets (including securities, but excluding any dividend or distribution referred to in subsection (i) above), which evidences of indebtedness or assets relate to assets not received by the General Partner pursuant to a pro rata distribution by the Partnership, then the Class A Convertible Preferred Unit Conversion Factor shall be adjusted to equal the amount determined by multiplying the Class A Convertible Preferred Unit Conversion Factor in effect immediately prior to the close of business on the date fixed for determination of shareholders entitled to receive such distribution by a fraction (a) the numerator of which shall be such Value of a Common Unit on the date fixed for such determination and (b) the denominator of which shall be the amount of the numerator less the then-fair market value (as determined by the General Partner, whose determination shall be conclusive) of the portion of the evidences of indebtedness or assets so distributed applicable to one Common Unit;

(iv)      the General Partner declares or pays a cash dividend or other cash distribution on its outstanding Common Shares or a cash distribution on its outstanding Common Units during any quarterly fiscal period, (excluding any dividend or distribution in connection with a liquidation, dissolution or wind up of the Partnership or the General Partner), in either case, in excess of the Reference Dividend multiplied by the number of shares of Common Stock or Common Units outstanding on the record date for dividend or distribution, then the Class A Convertible Preferred Unit Conversion Factor shall be adjusted to equal the amount determined by multiplying the Class A Convertible Preferred Unit Conversion Factor in effect immediately prior to the close of business on the date fixed for

 

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determination of shareholders or unit holders entitled to receive such distribution by a fraction (i) the numerator of which shall be the average of the daily Market Prices for the five (5) consecutive trading days prior to the trading day immediately preceding the earlier of the record date or ex-dividend date for the distribution, and (ii) the denominator of which is the difference of the amount equal to the numerator minus the amount in cash per Common Share or Common Unit (as the case may be) distributed (or to be distributed) to the holders of its outstanding Common Shares or Common Unit (as the case may be) in excess of the Reference Dividend. Notwithstanding anything to the contrary contained herein, no adjustment shall be made to the Class A Convertible Preferred Unit Conversion Factor if such adjustments would reduce the amount of the Class A Convertible Preferred Unit Conversion Factor; and

(v)      the Partnership (a) declares or pays a distribution on the outstanding Class A Convertible Preferred Units in Class A Convertible Preferred Units or makes a distribution to all Partners in Class A Convertible Preferred Units, (b) subdivides the outstanding Class A Convertible Preferred Units or (c) combines the outstanding Class A Convertible Preferred Units into a smaller number of Class A Convertible Preferred Units, then the Class A Convertible Preferred Unit Redemption Factor shall be adjusted by multiplying the Class A Convertible Preferred Unit Redemption Factor by a fraction, the numerator of which shall be the actual number of Class A Convertible Preferred Units issued and outstanding on the record date (determined without giving effect to such dividend, distribution, subdivision or combination), and the denominator of which shall be the actual number of Class A Convertible Preferred Units (determined after giving effect to such dividend, distribution, subdivision or combination) issued and outstanding on such record date.

Any adjustments to the Class A Convertible Preferred Unit Conversion Factor shall become effective immediately after the effective date of such event, retroactive to the record date, if any, it being intended that if a Specified Redemption Date shall fall between the record date and the effective date of any event of the type described above, then the Class A Convertible Preferred Unit Conversion Factor applicable to such redemption shall be adjusted to take into account such event, provided , however , that any Limited Partner may waive, by written notice to the General Partner, the effect of any adjustment to the Class A Convertible Preferred Unit Conversion Factor applicable to the Class A Convertible Preferred Units held by such Limited Partner, and, thereafter, such adjustment will not be effective as to such Class A Convertible Preferred Units.

“ Class A Convertible Preferred Unit Liquidation Preference Amount ” means $25.00 per Class A Convertible Preferred Unit.

“ Class A Preferred Distribution ” has the meaning set forth in Section 4.3.2 .

“ Class A Unlock Date ” means, unless otherwise agreed by the Partnership and a Limited Partner, the date at which both of the following have occurred: (i) the two (2)-year anniversary of the Effective Time and (ii) the consummation of a Qualified Public Offering.

“ Closing Price ” means on any date the last sale price for such Common Shares, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, for such Common Shares, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the American Stock Exchange or, if such Common Shares are not listed or admitted to trading on the American Stock Exchange, as reported on the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which such Common Shares are listed or admitted to trading or, if such Common Shares are not listed or admitted to trading on any national securities exchange, the last quoted price, or the principal automated quotation system that may then be in use or, if such Common Shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in such Common Shares selected by the Board of Directors of the General Partner or, in the event that no trading price is available for such

 

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Common Shares, the fair market value of the Common Shares as determined in good faith by the Board of Directors of the General Partner.

“ Code ” means the Internal Revenue Code of 1986, as amended and in effect from time to time or any successor statute thereto, as interpreted by the applicable Regulations thereunder. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of future law.

“ Common Shares ” means, together, the shares of the General Partner’s common stock, $.0001 par value per share, and the shares of General Partner’s Class B common stock, $.0001 par value per share. Where relevant in this Agreement, “Common Shares” includes shares of the General Partner’s common stock, $.0001 par value per share, issued upon conversion of Preferred Shares or Junior Shares.

“ Common Shares Amount ” means a number of Common Shares equal to the product of (a) the number of Tendered Units, multiplied by (b) the Common Unit Redemption Factor in effect on the Specified Redemption Date with respect to such Tendered Units; provided , however , that, in the event that the General Partner issues to all holders of Common Shares as of a certain record date rights, options, warrants or convertible or exchangeable securities entitling such holders to subscribe for or purchase Common Shares or any other securities or property (collectively, the “ Rights ”), with the record date for such Rights issuance falling within the period starting on the date of the Notice of Redemption and ending on the day immediately preceding the Specified Redemption Date but which Rights will not be distributed before the relevant Specified Redemption Date, then the Common Shares Amount shall also include such Rights that a holder of that number of Common Shares would be entitled to receive, expressed, where relevant hereunder, in a number of Common Shares determined by the General Partner in good faith.

“ Common Unit ” means a fractional share of the Partnership Interests of all Partners issued pursuant to Sections 4.1 and 4.3 hereof, but does not include any Class A Convertible Preferred Unit, Preferred Unit, Junior Unit or any other Partnership Unit specified in a Partnership Unit Designation or this Agreement as being other than a Common Unit; provided , however , that the General Partner Interest and the Limited Partner Interests shall have the differences in rights and privileges as specified in this Agreement. The ownership of Common Units may be (but need not be, in the sole and absolute discretion of the General Partner) evidenced by the form of certificate for Common Units attached hereto as Exhibit B .

“ Common Unit Redemption Factor ” means 1.0; provided , however , if, at any time:

(i)      the General Partner (a) declares or pays a dividend on its outstanding Common Shares in Common Shares or makes a distribution to all holders of its outstanding Common Shares in Common Shares, (b) splits or subdivides its outstanding Common Shares or (c) effects a reverse stock split or otherwise combines its outstanding Common Shares into a smaller number of Common Shares, then the Common Unit Redemption Factor shall be adjusted by multiplying the Common Unit Redemption Factor previously in effect by a fraction (A) the numerator of which shall be the number of Common Shares issued and outstanding on the record date for such dividend, distribution, split, subdivision, reverse split or combination (assuming for such

 

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purposes that such dividend, distribution, split, subdivision, reverse split or combination has occurred as of such time) and (B) the denominator of which shall be the actual number of Common Shares (determined without the above assumption) issued and outstanding on the record date for such dividend, distribution, split, subdivision, reverse split or combination;

(ii)      the General Partner distributes any rights, options or warrants to all holders of its Common Shares to subscribe for or to purchase or to otherwise acquire Common Shares (or other securities or rights convertible into, exchangeable for or exercisable for Common Shares) at a price per share less than the Value of a Common Share on the record date for such distribution (each a “ Distributed Right ”), then the Common Unit Redemption Factor shall be adjusted by multiplying the Common Unit Redemption Factor previously in effect by a fraction the numerator of which shall be the sum of (A) the number of Common Shares issued and outstanding on the record date plus (B) the maximum number of Common Shares purchasable under such Distributed Rights, and the denominator of which shall be the sum of (1) the number of Common Shares issued and outstanding on the record date, plus (2) a fraction, the numerator of which equals the product of (x) the maximum number of Common Shares purchasable under such Distributed Rights multiplied by (y) the minimum purchase price per Common Share under such Distributed Rights, and the denominator of which is the Value of a Common Share as of the record date; provided , however , that, if any such Distributed Rights expire or become no longer exercisable, then the Common Unit Redemption Factor shall be adjusted, effective retroactively to the date of distribution of the Distributed Rights, to reflect a reduced maximum number of Common Shares or any change in the minimum purchase price for the purposes of the above fraction;

(iii)      the General Partner shall, by dividend or otherwise, distribute to all holders of its Common Shares evidences of its indebtedness or assets (including securities, but excluding any dividend or distribution referred to in subsection (i) above), which evidences of indebtedness or assets relate to assets not received by the General Partner pursuant to a pro rata distribution by the Partnership, then the Common Unit Redemption Factor shall be adjusted to equal the amount determined by multiplying the Common Unit Redemption Factor in effect immediately prior to the close of business on the date fixed for determination of shareholders entitled to receive such distribution by a fraction (a) the numerator of which shall be such Value of a Common Share on the date fixed for such determination and (b) the denominator of which shall be the amount of the numerator less the then-fair market value (as determined by the General Partner, whose determination shall be conclusive) of the portion of the evidences of indebtedness or assets so distributed applicable to one Common Share; and

(iv)      the Partnership (a) declares or pays a distribution on the outstanding Common Units in Common Units or makes a distribution to all Partners in Common Units, (b) subdivides the outstanding Common Units or (c) combines the outstanding Common Units into a smaller number of Common Units, then the Common Unit Redemption Factor shall be adjusted by multiplying the Common Unit Redemption Factor by a fraction, the numerator of which shall be the actual number of Common Units issued and outstanding on the record date (determined without giving effect to such dividend, distribution, subdivision or combination), and the denominator of which shall be the actual number of Common Units (determined after giving effect to such dividend, distribution, subdivision or combination) issued and outstanding on such record date.

If the General Partner has in effect a rights plan, then the Common Unit Redemption Factor shall not be adjusted to reflect the issuance of rights under the General Partner’s stockholder rights agreement except as set forth in the next following sentence. If the rights provided for in the rights plan adopted by the General Partner have separated from the Common Shares in accordance with the provisions of the applicable stockholder rights agreement so that holders of Common Units would not be entitled to receive any rights in respect of any shares of Common Shares delivered upon receipt of any REIT Consideration an exchange of Common Units, the Common Unit Redemption Factor will be adjusted at the time of separation as if the General Partner had distributed, to all holders of Common Shares, capital stock, evidences of indebtedness or other assets or property pursuant hereto. Any adjustments to the Common Unit

 

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Redemption Factor shall become effective immediately after the effective date of such event, retroactive to the record date, if any, it being intended that (x) adjustments to the Common Unit Redemption Factor are to be made to avoid unintended dilution or anti-dilution as a result of transactions in which Common Shares are issued, redeemed or exchanged without a corresponding issuance, redemption or exchange of Common Units and (y) if a Specified Redemption Date shall fall between the record date and the effective date of any event of the type described above, then the Common Unit Redemption Factor applicable to such redemption shall be adjusted to take into account such event, provided , however , that any Limited Partner may waive, by written notice to the General Partner, the effect of any adjustment to the Common Unit Redemption Factor applicable to the Common Units held by such Limited Partner, and, thereafter, such adjustment will not be effective as to such Common Units.

“ Consent ” means the consent to, approval of, or vote in favor of a proposed action by a Partner given in accordance with Section 14 hereof.

“ Consent of the Limited Partners ” means the Consent of a Majority of the Limited Partners, which Consent shall be obtained prior to the taking of any action for which it is required by this Agreement and, except as otherwise provided in this Agreement, may be given or withheld by a Majority of the Limited Partners.

“ Contributed Interest ” shall mean an equity interest (whether in shares of capital stock, limited liability company membership interests, partnership interests, trust interests or otherwise) in an entity (whether corporation, limited liability company, partnership, limited partnership, statutory business trust, trust or otherwise) which holds (on a direct or an indirect basis) holds fee simple or leasehold title (in whole or in part) to a Contributed Property.

“ Contributed Property ” means each item of Property or other non-cash asset contributed to the Partnership.

“ Conversion Time ” has the meaning set forth in Section 4.3.7 .

“ Cut-Off Date ” means the fifth (5th) Business Day after the General Partner’s receipt of a Notice of Redemption.

“ Debt ” means, as to any Person, as of any date of determination, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services; (ii) all amounts owed by such Person to banks or other Persons in respect of reimbursement obligations under letters of credit, surety bonds and other similar instruments guaranteeing payment or other performance of obligations by such Person; (iii) all indebtedness for borrowed money or for the deferred purchase price of property or services secured by any lien on any property owned by such Person, to the extent attributable to such Person’s interest in such property, even though such Person has not assumed or become liable for the payment thereof; and (iv) lease obligations of such Person that, in accordance with generally accepted accounting principles, should be capitalized.

“ Depreciation ” means, for each Fiscal Year or other applicable period, an amount equal to the federal income tax depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such year or other period, except that if the Gross Asset Value of an

 

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asset differs from its adjusted basis for federal income tax purposes at the beginning of such year or period, Depreciation shall be in an amount that bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided , howeve r , that if the federal income tax depreciation, amortization or other cost recovery deduction for such year or period is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the General Partner.

“ Distributed Right ” has the meaning set forth in the definitions of “Common Unit Redemption Factor” and “Class A Convertible Preferred Unit Conversion Factor,” as applicable, set forth in this Section 1 .

“ Domestic Partner ” of any Partner shall mean an individual who (i) has reached the age of 18 and is competent to consent to a contract, (ii) is of the same gender of the Partner, (iii) is not married to and/or is not the domestic partner of anyone other than the Partner; (iv) is not related by blood to the Partner in any way that would prohibit marriage in their state of residence, and (v) has shared a principal place of residence with the Partner for a period of at least eighteen (18) months and has a current intention to continue sharing a principal place of residence with the Partner and intends to do so indefinitely.

“ Effective Time ” has the meaning set forth in the Preamble to this Agreement.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and as it may be amended from time to time and any successor statute.

“ Exchange Act ” means the Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder, each as may be amended from time to time and any successor statute.

“ Family Members ” means, as to a Person that is an individual, such Person’s spouse, Domestic Partner, ancestors, descendants (whether by blood or by adoption), brothers and sisters and inter vivos or testamentary trusts of which only such Person and/or his spouse, Domestic Partner, ancestors, descendants (whether by blood or by adoption), brothers and sisters are beneficiaries.

“ Fiscal Year ” means the fiscal year of the Partnership, which shall be the calendar year unless otherwise determined by the General Partner.

“ Funding Debt ” means any Debt incurred by or on behalf of the General Partner for the purpose, in whole or in part, of providing funds to the Partnership.

“ General Partner ” means Pacific Office Properties Trust, Inc., a Maryland corporation, and its successors and assigns, as the general partner of the Partnership in its capacity as general partner of the Partnership.

“ General Partner Interest ” means the Partnership Interest held by the General Partner, which Partnership Interest is an interest as a general partner under the Act. A General Partner Interest may be expressed as a number of Common Units, Preferred Units or any other Partnership Units. Initially, the General Partner Interest shall be denominated as a number of Common Units equal to the number of Common Shares outstanding as of the Effective Time.

 

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“ General Partner Loan ” has the meaning set forth in Section 4.5.4 .

“Gross Asset Value” means, with respect to any asset of the Partnership, the asset’s adjusted basis for federal income tax purposes, except as follows:

(a)      the initial Gross Asset Value of any asset contributed by a Partner to the Partnership shall be the gross fair market value of such asset, as reasonably determined by the General Partner or as otherwise agreed to by the General Partner and the contributing Partner;

(b)      if the General Partner reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Partners in the Partnership, the Gross Asset Values of all Partnership assets shall be adjusted to equal their respective gross fair market values, as reasonably determined by the General Partner, as of the following times: (i) the acquisition of an additional Partnership Interest by any new or existing Partner in exchange for more than a de minimis Capital Contribution; (ii) the distribution by the Partnership to a Partner of more than a de minimis amount of cash or other Partnership property as consideration for a Partnership Interest; (iii) the liquidation of the Partnership within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); (iv) the grant of more than a de minimis Partnership Interest as consideration for the provision of services to or for the benefit of the Partnership by an existing Partner acting in his capacity as a Partner, or by a new Partner acting in his capacity as such or in anticipation of becoming a Partner; and (v) at any other time (A) specified in Regulations Section 1.704-1(b)(2)(iv)(f)(5) or (B) if reasonably determined by the General Partner to be necessary or advisable in order to comply with Regulations Sections 1.704-1(b) and 1.704-2;

(c)      the Gross Asset Values of Partnership assets distributed to any Partner shall be the gross fair market values of such assets (taking Code Section 7701(g) into account) as reasonably determined by the General Partner as of the date of distribution; and

(d)      the Gross Asset Values of Partnership assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) and Section 6.3.2(vii) ; provided , however , that Gross Asset Values shall not be adjusted pursuant to this paragraph to the extent the General Partner reasonably determines that an adjustment pursuant to clause (b) above is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this paragraph.

At all times, Gross Asset Values shall be adjusted by Depreciation, which Depreciation is taken into account with respect to the Partnership’s assets for purposes of computing Income or Loss. Any adjustment to the Gross Asset Values of Partnership property shall require an adjustment to the Partners’ Capital Accounts; as for the manner in which such adjustments are allocated to the Capital Accounts, see paragraph (d) of the definition of Income or Loss in the case of adjustments by Depreciation, and see paragraph (e) of said definition in all other cases.

“ Holder ” means any Partner, and any Assignee which is treated as a partner in the Partnership for federal income tax purposes.

 

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“ Incapacity” or “Incapacitated ” means, (i) as to any Partner who is an individual, death, total physical disability or entry by a court of competent jurisdiction adjudicating such Partner incompetent to manage his or her person or his or her estate; (ii) as to any Partner that is a corporation or limited liability company, the filing of a certificate of dissolution, or its equivalent, or the revocation of the corporation’s charter; (iii) as to any Partner that is a partnership, the dissolution and commencement of winding up of the partnership; (iv) as to any Partner that is an estate, the distribution by the fiduciary of the estate’s entire interest in the Partnership; (v) as to any trustee of a trust that is a Partner, the termination of the trust (but not the substitution of a new trustee); or (vi) as to any Partner, the bankruptcy of such Partner. For purposes of this definition, “bankruptcy” of a Partner shall be deemed to have occurred when (a) the Partner commences a voluntary proceeding seeking liquidation, reorganization or other relief of or against such Partner under any bankruptcy, insolvency or other similar law now or hereafter in effect, (b) the Partner is adjudged as bankrupt or insolvent, or a final and nonappealable order for relief under any bankruptcy, insolvency or similar law now or hereafter in effect has been entered against the Partner, (c) the Partner executes and delivers a general assignment for the benefit of the Partner’s creditors, (d) the Partner files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the Partner in any proceeding of the nature described in clause (b) above, (e) the Partner seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator for the Partner or for all or any substantial part of the Partner’s properties, (f) any proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other similar law now or hereafter in effect has not been dismissed within one hundred twenty (120) days after the commencement thereof, (g) the appointment without the Partner’s consent or acquiescence of a trustee, receiver or liquidator has not been vacated or stayed within ninety (90) days of such appointment, or (h) an appointment referred to in clause (g) above is not vacated within ninety (90) days after the expiration of any such stay.

“ Income” or “Loss ” means, for each Fiscal Year of the Partnership, the Partnership’s taxable income or loss, as the case may be, for such year for federal income tax purposes, determined in accordance with Code Section 703(a), inclusive of all items of income, gain, loss or deduction required to be separately taxable pursuant to Code Section 703(a)(1), with the following adjustments:

(a)      Any income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing Income (or Loss) shall be added to (or subtracted from, as the case may be) such taxable income (or loss);

(b)      Any expenditure of the Partnership described in Code Section 705(a)(2)(b) or treated as a Code Section 705(a)(2)(b) expenditure under Code Section 704(b), and not otherwise taken into account in computing Income (or Loss) shall be subtracted from (or added to, as the case may be) such taxable income (or loss);

(c)      Gain or loss resulting from any disposition of Partnership property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Partnership Gross Asset Value of the property disposed of, rather than its adjusted tax basis;

 

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(d)      In lieu of the depletion, depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for the period;

(e)      In the event of an adjustment of the book value of any Partnership asset which requires that the Capital Accounts of the Partners be adjusted pursuant to Regulations Sections 1.704-1(b)(2)(iv)(e), (f) and (m), the amount of such adjustments are, in the case of Regulations Sections 1.704-1(b)(2)(iv) (e) and (f), to be taken into account as gain or loss from a taxable disposition of Partnership property pursuant to paragraph (c) above, and, in the case of Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into account as additional Income or Loss but subject to the special allocations set forth in Section 6.3 hereof; and

(f)      Notwithstanding any other provision of this definition of “Income” or “Loss,” any item that is specially allocated pursuant to Section 6.3 hereof shall not be taken into account in computing Income or Loss.

“ Indemnitee ” means (i) any Person made a party to a proceeding by reason of its status as (a) the General Partner, or (b) a director of the General Partner or an officer or employee of the Partnership or the General Partner and (ii) such other Persons (including Affiliates of the General Partner or the Partnership) as the General Partner may designate from time to time (whether before or after the event giving rise to potential liability), in its sole and absolute discretion.

“ Independent Director ” means a director of the General Partner who is not an employee of the General Partner and who is not an employee or an Affiliate of the Advisor.

“ IRS ” means the Internal Revenue Service.

“ Junior Share ” means a share of capital stock of the General Partner now or hereafter authorized or reclassified that has dividend rights, or rights upon liquidation, winding up and dissolution, that are inferior or junior to the Common Shares.

“ Junior Unit ” means a fractional share of the Partnership Interests that the General Partner hereafter authorizes pursuant to Section 4.1 , Section 4.3 or Section 4.5 hereof that has distribution rights, or rights upon liquidation, winding up and dissolution, that are inferior or junior to the Common Units.

“ Limited Partner ” means any Person reflected as a limited partner on the books and records of the Partnership, including any Substituted Limited Partner or Additional Limited Partner, in such Person’s capacity as a limited partner in the Partnership.

“ Limited Partner Interest ” means a Partnership Interest of a Limited Partner in the Partnership representing a fractional part of the Partnership Interests of all Limited Partners and includes any and all benefits to which the holder of such a Partnership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. A Limited Partner Interest may be expressed as a number of Common Units, Class A Convertible Preferred Units, Preferred Units, Junior Units or other Partnership Units.

 

12

“ Liquidating Event ” has the meaning set forth in Section 13.1 .

“ Liquidator ” has the meaning set forth in Section 13.2.1 .

“ Lock-Out Date ” means the Class A Unlock Date and any other date specified as a restriction on the rights of Partner to convert its Partnership Units into any other class or series of Partnership Units or to otherwise exercise such Partner’s rights of redemption with respect to its Partnership Units.

“ LP Direction Votes ” has the meaning set forth in Section 7.1.1(f) .

“ Majority of the Limited Partners ” means Limited Partners holding more than fifty percent (50%) of the Common Shares that would be obtained by exchanging all of the Partnership Units outstanding at such time and each exchangeable by their terms for Common Shares (ignoring for purposes hereof the impact of any Lock-Out Date).

“ Market Price ” means on any date, with respect to any class or series of outstanding Common Shares, the Closing Price for such Common Shares on such date.

“ Master Agreement ” means that certain Master Formation and Contribution Agreement by and between Arizona Land Income Corporation, an Arizona corporation, and POP Venture, LLC, a Delaware limited liability company, dated as of October 3, 2006.

“ Net Equity Value ” shall mean, for any Contributed Interest, the product of (a) the percentage ownership represented by such Contributed Interest, multiplied by (b) the amount equal to the difference between (i) the Gross Asset Value of the Contributed Property, minus (ii) the amount, including accrued and unpaid interest, of any unpaid mortgage debt secured by such Contributed Property (whether by lien encumbering fee simple title, a leasehold estate or an ownership interest in a condominium).

“ Nonrecourse Deductions ” means, for a Fiscal Year, the net increase, if any, in the amount of Partnership Minimum Gain during that Fiscal Year, reduced (but not below zero) by the aggregate amount of any distributions made during such taxable year of proceeds of a nonrecourse liability (other than a Partner Nonrecourse Debt) that are allocable to an increase in Partnership Minimum Gain, determined according to the principles of Regulations Section 1.704-2(c).

“ Nonrecourse Liability ” has the meaning set forth in Regulations Section 1.752-1(a)(2).

“ Notice of Conversion ” has the meaning set forth in Section 4.3.7 .

“ Notice of Redemption ” means the Notice of Redemption substantially in the form of Exhibit A attached to this Agreement.

“ Optional Liquidation Preference Event ” has the meaning set forth in Section 4.3.3 .

“ Other Securities ” means (i) any rights, options, warrants or convertible or exchangeable securities having the right to subscribe for or purchase Common Shares or

 

13

Preferred Shares, excluding Preferred Shares, Junior Shares and grants under any Stock Incentive Plans, or (ii) any Debt issued by the General Partner that provides any of the rights described in clause (i).

“ Ownership Limit ” means the applicable restriction or restrictions on ownership of shares of the General Partner imposed under the Articles of Incorporation.

“ Pari Passu Units ” has the meaning set forth in Section 4.3.1 .

“ Partner ” means the General Partner or a Limited Partner, and “Partners” means the General Partner and the Limited Partners.

“Partner Nonrecourse Debt Minimum Gain” means “partner nonrecourse debt minimum gain” as such term is defined in Regulations Section 1.704-2(i)(2). A Partner’s share of Partner Nonrecourse Debt Minimum Gain (and any net decrease thereof) at any time shall be determined in accordance with Regulations Section 1.704-2(i).

“ Partner Nonrecourse Debt ” has the meaning set forth in Regulations Section 1.704-2(b)(4).

“ Partner Nonrecourse Deductions ” has the meaning set forth in Regulations Section 1.704-2(i)(2), and the amount of Partner Nonrecourse Deductions with respect to a Partner Nonrecourse Debt for a Fiscal Year shall be determined in accordance with the rules of Regulations Section 1.704-2(i)(2).

“ Partnership ” means the limited partnership formed under the Act and pursuant to this Agreement, and any successor thereto.

“ Partnership Employees ” means the employees of the Partnership, the General Partner and any of their subsidiaries.

“ Partnership Interest ” means an ownership interest in the Partnership held by either a Limited Partner or the General Partner and includes any and all benefits to which the holder of such a Partnership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. A Partnership Interest may be expressed as a number of Common Units, Class A Convertible Preferred Units, Preferred Units, Junior Units or other Partnership Units.

“ Partnership Minimum Gain ” has the meaning set forth in Regulations Section 1.704-2(b)(2), and the amount of Partnership Minimum Gain, as well as any net increase or decrease in Partnership Minimum Gain, for a Fiscal Year shall be determined in accordance with the rules of Regulations Section 1.704-2(d).

“ Partnership Record Date ” means a record date established by the General Partner for a distribution pursuant to Section 5.1 hereof, which record date shall generally be the same as the record date established by the General Partner for a distribution to its shareholders of some or all of its share of such distribution.

 

14

“ Partnership Unit ” shall mean a Common Unit, a Class A Convertible Preferred Unit, a Preferred Unit, a Junior Unit or any other fractional share of the Partnership Interests that the General Partner has authorized pursuant to Section 4.1 , Section 4.3 or Section 4.5 hereof.

“ Partnership Unit Designation ” shall have the meaning set forth in Section 4.3 hereof.

“Percentage Interest” means, as to each Partner (including the General Partner), its interest, if any, in the Common Units as determined by dividing (a) the product of (i) the number of Common Units then-held by such Partner, multiplied by (ii) the Common Unit Redemption Factor, by (b) the product of (i) the total number of Common Units outstanding as of such time, multiplied by (ii) the Common Unit Redemption Factor. To the extent that the Partnership issues more than one class or series of Partnership Interests, the interest of such class or series shall be determined as set forth in this Agreement or any amendment hereto.

“ Person ” means an individual or a corporation, partnership, trust, unincorporated organization, association, limited liability company or other entity.

“ Preferred Share ” means a share of capital stock of the General Partner now or hereafter authorized or reclassified that has dividend rights, or rights upon liquidation, winding up and dissolution, that are superior or prior to the Common Shares.

“ Preferred Unit ” means a fractional share of the Partnership Interests that the General Partner hereafter authorizes pursuant to Section 4.1, Section 4.3 or Section 4.5 hereof that has distribution rights, or rights upon liquidation, winding up and dissolution, that are superior or prior to the Common Units. For the avoidance of doubt, Class A Convertible Preferred Units shall not be deemed to be, and are not, “Preferred Units” for purposes of this Agreement.

“ Property ” or “ Properties ” means any assets and property of the Partnership such as, but not limited to, interests in real property and personal property, including fee interests, interests in ground leases, interests in limited liability companies, joint ventures or partnerships, interests in mortgages, and Debt instruments as the Partnership may hold from time to time, and “Property” shall mean any one such asset or property.

“ Proportionate Voting Preferred Stock ” means shares of Proportionate Voting Preferred Stock, $.0001 par value per share, of the General Partner.

“ Qualified Public Offering ” means the sale by the General Partner of Common Shares in a bona fide, firm commitment fully underwritten offering pursuant to an effective registration statement filed with the United States Securities and Exchange Commission on Form S-1 (or any success form thereto) under the Securities Act of 1933, as amended, in which the Company receives net proceeds of more than $75 million (i.e. following deduction of underwriting discounts, expenses of sale and other costs), provided that immediately following the

 

15

consummation of such offering the Common Shares sold in such offering are listed for trading on any national securities exchange.

“ Qualified REIT Subsidiary ” means a qualified REIT subsidiary of the General Partner within the meaning of Code Section 856(i)(2).

“ Qualified Transferee ” means an “accredited investor” as defined in Rule 501 promulgated under the Securities Act.

“ Qualifying Party ” means (a) a Limited Partner (other than the General Partner to the extent it is also a Limited Partner), (b) an Additional Limited Partner, or (c) a Substituted Limited Partner succeeding to all or part of a Limited Partner Interest of a Limited Partner or an Additional Limited Partner.

“ Redemption ” has the meaning set forth in Section 8.5 .

“ Reference Dividend ” means the per quarter amount set by the Board of Directors of the General Partner for the first quarterly dividend on Common Shares declared following the Effective Time (which shall be a minimum of $0.06); provided , however , that this amount shall be adjusted in a manner inversely proportionate to adjustments to the Common Unit Redemption Factor upon the same events as for Common Unit Redemption Factor.

“ Regulations ” means the applicable income tax regulations under the Code, whether such regulations are in proposed, temporary or final form, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“ Regulatory Allocations ” has the meaning set forth in Section 6.3.1(viii) .

“ REIT ” means a real estate investment trust qualifying under Code Section 856.

“ REIT Consideration ” means the aggregate number of Common Shares equal to the product of the Common Shares Amount multiplied by the Applicable Percentage. No fractional Common Shares shall be issued as REIT Consideration. In lieu of any fractional shares to which the holder would otherwise be entitled, the General Partner shall pay cash equal to such fraction multiplied by the Value of a Common Share. If the General Partner has in effect a rights plan, the REIT Consideration shall include, in addition to Common Shares, rights under the General Partner’s stockholder rights agreement unless such rights have expired, terminated or been redeemed or unless the rights have separated from the Common Shares.

“ REIT Expenses ” means (i) costs and expenses relating to the continuity of existence of the General Partner and any Person (other than the Partnership) in which the General Partner owns an equity interest, to the extent not prohibited by Section 7.4 (which Persons shall, for purposes of this definition, be included within the definition of “General Partner”), including taxes, fees and assessments associated therewith (other than federal, state or local income taxes imposed upon the General Partner as a result of the General Partner’s failure to distribute to its shareholders an amount equal to its taxable income), any and all costs, expenses or fees payable to any trustee or director of the General Partner, (ii) costs and expenses relating to any offer or registration of securities by the General Partner (the proceeds of which will be contributed or advanced to the Partnership) and all statements, reports, fees and expenses incidental thereto, including underwriting discounts and selling commissions applicable to any such offer of

 

16

securities, (iii) costs and expenses associated with the preparation and filing of any periodic reports by the General Partner under federal, state or local laws or regulations, including filings with the SEC, (iv) costs and expenses associated with compliance by the General Partner with laws, rules and regulations promulgated by any regulatory body, including the SEC, and (v) all other operating or administrative costs of the General Partner incurred in the ordinary course of its business; provided , however , that any of the foregoing expenses that are determined by the General Partner to be expenses relating to the ownership and operation of, or for the benefit of, the Partnership shall be treated as reimbursable expenses under Section 7.3.2 hereof rather than as “REIT Expenses.”

“ REIT Partner ” means (a) a Partner, including the General Partner, that is a REIT, (b) any qualified REIT subsidiary (as defined in Code Section 856(i)(2)) of any Partner that is a REIT and (c) any Partner that is a qualified REIT subsidiary (as defined in Code Section 856(i)(2)) of a REIT.

“ REIT Payment ” has the meaning set forth in Section 15.12 .

“ REIT Requirements ” means the requirements for qualification as a REIT under the Code and Regulations, including the distribution requirements contained in Section 857(a) of the Code.

“ Related Party ” means, with respect to any Person, any other Person whose ownership of shares of the General Partner’s capital stock would be attributed to the first such Person under Code Section 544 (as modified by Code Section 856(h)(1)(b)).

“ Restricted Common Units ” has the meaning set forth in Section 4.6.2 .

“ Rights ” has the meaning set forth in the definition of “Common Shares Amount.”

“ SARs ” means stock or Unit appreciation rights, whether payable in cash or stock (or Units), including SARs payable in cash, stock or Units at the election of the recipient.

“ SEC ” means the Securities and Exchange Commission, or any successor agency thereto.

“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, each as may be amended from time to time and any successor statute.

“ Senior Units ” has the meaning set forth in Section 4.3.1 .

“ Services Agreement ” means any management, development or advisory agreement with a property and/or asset manager for the provision of property management, asset management, leasing, development and/or similar services with respect to the Properties and any agreement for the provision of services of accountants, legal counsel, appraisers, insurers, brokers, transfer agents, registrars, developers, financial advisors and other professional services, including the Advisory Agreement.

 

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“ Specified Redemption Date ” means the tenth (10th) Business Day after the receipt by the General Partner of a Notice of Redemption; provided , however , that a Specified Redemption Date, as well as the closing of a Redemption or an acquisition of Tendered Units by a REIT Partner pursuant to Section 8.5.4 hereof on any Specified Redemption Date, may be deferred, in the General Partner’s sole and absolute discretion, for such time (but in any event not more than one hundred fifty (150) days in the aggregate) as may reasonably be required to effect, as applicable, (i) compliance with the Securities Act or other laws (including, but not limited to, (a) state “blue sky” or other securities laws and (b) the expiration or termination of the applicable waiting period, if any, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended), or (ii) satisfaction or waiver of other commercially reasonable and customary closing conditions and requirements for a transaction of such nature.

“ Stock Incentive Plan ” means any plan, contract, authorization or arrangement, whether or not set forth in any formal documents, pursuant to which the following may be received: cash, stock or Units, restricted stock or Units, phantom stock or Units, stock or Unit options, SARs, stock or Unit options in tandem with SARs, warrants, convertible securities, performance units and performance shares, and similar instruments, hereafter adopted by the Partnership or the General Partner.

“ Subsidiary ” means, with respect to any Person, any other Person (which is not an individual) of which a majority of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests is owned, directly or indirectly, by such Person.

“ Substituted Limited Partner ” means a Person who is admitted as a Limited Partner to the Partnership pursuant to Section 11.4 hereof.

“ Taxable REIT Subsidiary ” has the meaning set forth in Section 856(l) of the Code.

“ Tax Items ” has the meaning set forth in Section 6.4.1 .

“ Tenant List ” has the meaning set forth in Section 3.4.1 .

“ Tendered Units ” has the meaning set forth in Section 8.5 .

“ Tendering Party ” has the meaning set forth in Section 8.5 .

“ Terminating Capital Transaction ” means any sale or other disposition of all or all but a de minimis amount of the assets of the Partnership or a related series of transactions that, taken together, result in the sale or other disposition of all or all but a de minimis amount of the assets of the Partnership; except that sales or other dispositions of assets to a Subsidiary will not be deemed a Terminating Capital Transaction.

“ Transfer , ” when used with respect to a Partnership Unit, or all or any portion of a Partnership Interest, means any sale, assignment, bequest, conveyance, devise, gift (outright or in trust), pledge, encumbrance, hypothecation, mortgage, exchange, transfer or other disposition or act of alienation, whether voluntary or involuntary or by operation of law; provided , however , that except as otherwise provided in Section 11 , when the term is used in Section 11 hereof, “Transfer” does not include (a) any Redemption of Partnership Units by the Partnership, or

 

18

acquisition of Tendered Units by a REIT Partner, pursuant to Section 8.5 hereof or (b) any redemption of Partnership Units pursuant to any Partnership Unit Designation. The terms “Transferred” and “Transferring” have correlative meanings.

“ Transfer Agent ” means, for any class of Partnership Interests, the transfer agent engaged by the Partnership, or if none is so engaged, the Partnership.

“ Unitholder ” means the General Partner or any Holder of Partnership Units.

“ Value ” means, on any date of determination with respect to a Common Share, the average of the daily Market Prices for ten (10) consecutive trading days immediately preceding the date of determination except that, as provided in Section 4.6.1(d) hereof, the Market Price for the trading day immediately preceding the date of exercise of a stock option (or other similar incentive exercisable by the recipient) under any Stock Incentive Plan shall be substituted for such average of daily Market Prices for purposes of Section 4.6 hereof. For purposes of Section 8.5 , the “ date of determination ” shall be the date of receipt by the General Partner of a Notice of Redemption or, if such date is not a Business Day, the immediately preceding Business Day. In the event that the Common Shares Amount includes Rights (as defined in the definition of “Common Shares Amount”) that a holder of Common Shares would be entitled to receive, then the Value of such Rights shall be determined by the General Partner acting in good faith. “Value” means, on any date of determination with respect to a Common Unit, the Value of a Common Share multiplied by the Common Unit Redemption Factor.

“ Voting Direction Provision ” has the meaning set forth in Section 7.1.1(f) .

 

2.

ORGANIZATIONAL MATTERS .

2.1       Organization .    The Partnership is a limited partnership organized pursuant to the provisions of the Act and upon the terms and subject to the conditions set forth in this Agreement. Except as expressly provided herein to the contrary, the rights and obligations of the Partners and the administration and termination of the Partnership shall be governed by the Act. The Partnership Interest of each Partner shall be personal property for all purposes.

2.2        Name .    The name of the Partnership is “Pacific Office Properties, L.P.” The Partnership’s business may be conducted under any other name or names deemed advisable by the General Partner, including the name of the General Partner or any Affiliate thereof. The General Partner in its sole and absolute discretion may change the name of the Partnership at any time and from time to time and shall notify the Partners of such change in the next regular communication to the Partners.

2.3        Registered Office and Agent; Principal Office .    The address of the registered office of the Partnership in the State of Delaware is located at 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808, and the registered agent for service of process on the Partnership in the State of Delaware at such registered office is Corporation Service Company. The principal office of the Partnership is located at 841 Bishop Street, Suite 1700, Honolulu, Hawaii 96813, or such other place as the General Partner may from time to time designate by notice to the Limited Partners. The Partnership may maintain offices at such other place or places within or outside the State of Delaware as the General Partner deems advisable.

 

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2.4

Power of Attorney .

2.4.1     Each Limited Partner hereby constitutes and appoints the General Partner, any Liquidator, and authorized officers and attorneys-in-fact of each, and each of those acting singly, in each case with full power of substitution, as its true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead to:

 

(a)

execute, swear to, acknowledge, deliver, file and record in the appropriate public offices (a) all certificates, documents and other instruments (including this Agreement and the Certificate and all amendments, supplements or restatements thereof) that the General Partner or the Liquidator deems appropriate or necessary to form, qualify or continue the existence or qualification of the Partnership as a limited partnership (or a partnership in which the Limited Partners have limited liability) in the State of Delaware and in all other jurisdictions in which the Partnership may or plans to conduct business or own property; (b) all instruments that the General Partner deems appropriate or necessary to reflect any amendment, change, modification or restatement of this Agreement in accordance with its terms; (c) all conveyances and other instruments or documents that the General Partner or the Liquidator deems appropriate or necessary to reflect the dissolution and liquidation of the Partnership pursuant to the terms of this Agreement, including a certificate of cancellation; (d) all instruments relating to the admission, withdrawal, removal or substitution of any Partner pursuant to, or other events described in, Section 11 , Section 12 or Section 13 hereof or the Capital Contribution of any Partner; and (e) all certificates, documents and other instruments relating to the determination of the rights, preferences and privileges relating to Partnership Interests; and

 

(b)

execute, swear to, acknowledge and file all ballots, consents, approvals, waivers, certificates and other instruments appropriate or necessary, in the sole and absolute discretion of the General Partner or any Liquidator, to make, evidence, give, confirm or ratify any vote, consent, approval, agreement or other action which is made or given by the Partners hereunder or is consistent with the terms of this Agreement or appropriate or necessary, in the sole and absolute discretion of the General Partner or any Liquidator, to effectuate the terms or intent of this Agreement.

Nothing contained herein shall be construed as authorizing the General Partner or any Liquidator to amend this Agreement except in accordance with Section 14 hereof or as may be otherwise expressly provided for in this Agreement.

2.4.2     The foregoing power of attorney is hereby declared to be irrevocable and a power coupled with an interest, in recognition of the fact that each of the Limited Partners and Assignees will be relying upon the power of the General Partner and any Liquidator to act as contemplated by this Agreement in any filing or other action by it on behalf of the Partnership, and it shall survive and not be affected by the subsequent Incapacity of any

 

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Limited Partner or Assignee and the Transfer of all or any portion of such Limited Partner’s or Assignee’s Partnership Units or Partnership Interest and shall extend to such Limited Partner’s or Assignee’s heirs, successors, assigns and personal representatives. Each such Limited Partner or Assignee hereby agrees to be bound by any representation made by the General Partner or any Liquidator, acting in good faith pursuant to such power of attorney; and each such Limited Partner or Assignee hereby waives any and all defenses that may be available to contest, negate or disaffirm the action of the General Partner or any Liquidator, taken in good faith under such power of attorney. Each Limited Partner or Assignee shall execute and deliver to the General Partner or the Liquidator, within fifteen (15) days after receipt of the General Partner’s or the Liquidator’s request therefor, such further designation, powers of attorney and other instruments as the General Partner or the Liquidator, as the case may be, deems necessary to effectuate this Agreement and the purposes of the Partnership.

2.5        Term .    Pursuant to Section 17-201 of the Act, the term of the Partnership commenced on January __, 2007 and shall continue until the Partnership is dissolved pursuant to the provisions of Section 13 hereof or as otherwise provided by law.

 

3.

PURPOSE .

3.1       Purpose and Business .    The purpose and nature of the Partnership is (i) to conduct any business that may be lawfully conducted by a limited partnership organized pursuant to the Act; provided , however , that such business shall be limited to and conducted in such a manner as to permit the General Partner at all times to be classified as a REIT and avoid the imposition of federal income and excise taxes on the General Partner, unless the General Partner ceases to qualify, or is not qualified, as a REIT for any reason or reasons; (ii) to enter into any partnership, joint venture, limited liability company or other similar arrangement to engage in any of the foregoing or the ownership of interests in any entity engaged, directly or indirectly, in any of the foregoing; and (iii) to do anything necessary or incidental to the foregoing. Nothing in this Section 3.1 shall prevent the General Partner from terminating its status as a REIT under the Code at any time (following which the proviso contained in clause of (i) above shall no longer be applicable).

3.2        Powers .    The Partnership shall have full power and authority to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described herein and for the protection and benefit of the Partnership, including, directly or through its ownership interest in other Persons, the power to (i) enter into, perform and carry out contracts of any kind, (ii) borrow money and issue evidences of indebtedness, whether or not secured by mortgage, deed of trust, pledge or other lien, (iii) acquire, own, manage, improve and develop real property, and (iv) lease, sell, transfer and dispose of real property; provided , however , that the Partnership shall not take, or refrain from taking, any action which, in the judgment of the General Partner, in its sole and absolute discretion, (i) could adversely affect the ability of the General Partner to continue to qualify as a REIT, (ii) could subject the General Partner to any additional taxes under Section 857 or Section 4981 of the Code,(iii) could violate any law or regulation of any governmental body or agency having jurisdiction over the General Partner, its securities or the Partnership; or (iv) could violate in any material respects any of the covenants, conditions or

 

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restrictions now or hereafter placed upon or adopted by the General Partner pursuant to any of our agreements or applicable laws and regulations.

3.3        Partnership Only for Partnership Purposes .    This Agreement shall not be deemed to create a company, venture or partnership between or among the Partners with respect to any activities whatsoever other than the activities within the purposes of the Partnership as specified in Section 3.1 hereof. Except as otherwise provided in this Agreement, no Partner shall have any authority to act for, bind, commit or assume any obligation or responsibility on behalf of the Partnership, its properties or any other Partner. No Partner, in its capacity as a Partner under this Agreement, shall be responsible or liable for any indebtedness or obligation of another Partner, and the Partnership shall not be responsible or liable for any indebtedness or obligation of any Partner, incurred either before or after the execution and delivery of this Agreement by such Partner, except as to those responsibilities, liabilities, indebtedness or obligations incurred pursuant to and as limited by the provisions of this Agreement and the Act.

 

3.4

Representations and Warranties by the Parties .

3.4.1     Each Additional Limited Partner and Substituted Limited Partner that is an individual, as a condition to becoming a Limited Partner, shall, by executing this Agreement or a counterpart thereof, represent and warrant to the Partnership and each other Partner that (i) the consummation of the transactions contemplated by this Agreement to be performed by such Partner will not result in a breach or violation of, or a default under, any material agreement by which such Partner or any of such Partner’s property is bound, or any statute, regulation, order or other law to which such Partner is subject, (ii) subject to the last sentence of this Section 3.4.1 , such Partner is neither a “foreign person” within the meaning of Code Section 1445(f) nor a “foreign partner” within the meaning of Code Section 1446(e), (iii) such Partner does not own, directly or indirectly, (a) nine and eight tenths percent (9.8%) or more of the total combined voting power of all classes of stock entitled to vote, or nine and eight tenths percent (9.8%) or more of the total value of shares of all classes of stock, of any corporation that is a tenant of any of (A) the General Partner or any Qualified REIT Subsidiary, (B) the Partnership or (C) any partnership, venture or limited liability company of which the General Partner or any Qualified REIT Subsidiary or the Partnership is a member, as reflected on the then current tenant list to be maintained by the General Partner (the “ Tenant List ”) or (b) an interest of nine and eight tenths percent (9.8%) or more in the assets or net profits of any tenant of any of (A) the General Partner or any Qualified REIT Subsidiary, (B) the Partnership or (C) any partnership, venture, or limited liability company of which the General Partner or any Qualified REIT Subsidiary or the Partnership is a member, as reflected on the Tenant List and (iv) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms. Notwithstanding anything contained herein to the contrary, in the event that the representation contained in the foregoing clause (ii) would be inaccurate if given by a Partner, such Partner (w) shall not be required to make and shall not be deemed to have made such representation, if it delivers to the General Partner in connection with or prior to its execution of this Agreement written notice that it may not truthfully make such representation, (x) hereby agrees that it is subject to the withholding provisions of the Code applicable to a “foreign person” or “foreign partner,” as applicable, and hereby authorizes the General Partner to withhold any and all amounts it is required to withhold pursuant to the Code with respect to such “foreign person” or “foreign partner,” as applicable, and (y) hereby agrees to cooperate fully

 

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with the General Partner with respect to such withholdings, including by effecting the timely completion and delivery to the General Partner of all forms reasonably determined to be required by the General Partner in connection therewith.

3.4.2     Each Additional Limited Partner and Substituted Limited Partner that is not an individual, as a condition to becoming an Additional Limited Partner or a Substituted Limited Partner, respectively, shall, by executing this Agreement or a counterpart thereof, represent and warrant to the Partnership and each other Partner(s) that (i) all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action, including that of its general partner(s), committee(s), trustee(s), beneficiaries, directors and/or shareholder(s), as the case may be, as required, (ii) the consummation of such transactions shall not result in a breach or violation of, or a default under, its partnership or operating agreement, trust agreement, articles, charter, bylaws or similar organizational document, as the case may be, any material agreement by which such Partner or any of such Partner’s properties or any of its partners, members, beneficiaries, trustees or shareholders, as the case may be, is or are bound, or any statute, regulation, order or other law to which such Partner or any of its partners, members, trustees, beneficiaries or shareholders, as the case may be, is or are subject, (iii) subject to the last sentence of this Section 3.4.2 , such Partner is neither a “foreign person” within the meaning of Code Section 1445(f) nor a “foreign partner” within the meaning of Code Section 1446(e), (iv) such Partner does not own, directly or indirectly, (a) except as otherwise disclosed by the Partner in writing to the Partnership, nine and eight tenths percent (9.8%) or more of the total combined voting power of all classes of stock entitled to vote, or nine and eight tenths percent (9.8%) or more of the total value of shares of all classes of stock, of any corporation that is a tenant of any of (A) the General Partner or any Qualified REIT Subsidiary, (B) the Partnership or (C) any partnership, venture or limited liability company of which the General Partner, any Qualified REIT Subsidiary or the Partnership is a member, as reflected on the Tenant List or (b) except as otherwise identified by the Partner in writing to the Partnership, an interest of nine and eight tenths percent (9.8%) or more in the assets or net profits of any tenant of any of (A) the General Partner or any Qualified REIT Subsidiary, (B) the Partnership or (C) any partnership, venture or limited liability company for which the General Partner, any Qualified REIT Subsidiary or the Partnership is a member, as reflected on the Tenant List and (vi) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms. Notwithstanding anything contained herein to the contrary, in the event that the representation contained in the foregoing clause (iii) would be inaccurate if given by a Partner, such Partner (w) shall not be required to make and shall not be deemed to have made such representation, if it delivers to the General Partner in connection with or prior to its execution of this Agreement written notice that it may not truthfully make such representation, (x) hereby agrees that it is subject to the withholding provisions of the Code applicable to a “foreign person” or “foreign partner,” as applicable, and hereby authorizes the General Partner to withhold any and all amounts it is required to withhold pursuant to the Code with respect to such “foreign person” or “foreign partner,” as applicable, and (y) hereby agrees to cooperate fully with the General Partner with respect to such withholdings, including by effecting the timely completion and delivery to the General Partner of all forms reasonably determined to be required by the General Partner in connection therewith.

3.4.3     Each Partner (including each Additional Limited Partner or Substituted Limited Partner as a condition to becoming a Limited Partner) represents, warrants

 

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and agrees that it has acquired its interest in the Partnership for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof, and not with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances. Each Partner further represents and warrants that it is a sophisticated investor, able and accustomed to handling sophisticated financial matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Partnership in what it understands to be a highly speculative and illiquid investment.

3.4.4     The representations and warranties contained in Sections 3.4.1 , 3.4.2 and 3.4.3 hereof shall survive the execution and delivery of this Agreement by each Partner (and, in the case of an Additional Limited Partner or a Substituted Limited Partner, the admission of such Additional Limited Partner or Substituted Limited Partner as a Limited Partner in the Partnership) and the dissolution, liquidation and termination of the Partnership.

3.4.5     Each Partner (including each Additional Limited Partner or Substituted Limited Partner as a condition to becoming a Limited Partner) hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Partnership or the General Partner have been made by the Partnership, any Partner or any employee or representative or Affiliate of any Partner to such Partner, and that projections and any other information, including financial and descriptive information and documentation, that may have been in any manner submitted to such Partner shall not constitute any representation or warranty of any kind or nature, express or implied.

 

4.

CAPITAL ACCOUNTS; CAPITAL CONTRIBUTIONS AND ISSUANCES OF PARTNERSHIP INTERESTS .

4.1       Capital Accounts .    A separate capital account shall be maintained for each Partner in accordance with the provisions of Regulations Section 1.704-1. No Partner shall be entitled to receive interest on its Capital Account or any portion thereof. Subject to Section 6 below, each Partner’s Capital Account shall be equal to:

(i)      The amount of cash or the Gross Asset Value of property contributed by such Partner to the Partnership (net of liabilities encumbering the contributed property that the Partnership is considered to assume or take subject to under Section 752 of the Code); plus

(ii)      The amount of any Profits or other items of taxable income or gain, or tax exempt income or gain, and items in the nature of income or gain allocated to the Partner pursuant to Section 6 ; less

(iii)      The amount of any Losses and items in the nature of Loss or deduction allocated to the Partner pursuant to Section 6 ; and less

(iv)      All distributions of cash of other property distributed to the Partner.

 

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4.2       General Partnership Interests .     At or about the Effective Time, the General Partner shall make a Capital Contribution to the Partnership in exchange for Partnership Units as contemplated by the Master Agreement.

 

4.3

Class A Convertible Preferred Units .

4.3.1       Rank .    The Class A Convertible Preferred Units shall rank in a Liquidating Event (a) prior to the Common Units; (b) prior to any class or series of Junior Units hereafter created; (c) pari passu with any class or series of Partnership Units of the Partnership currently existing or hereafter created specifically ranking on parity with the Class A Convertible Preferred Units (collectively, “ Pari Passu Units ”), and (d) junior to any class or series of Partnership Units of the Partnership hereafter created specifically ranking senior to the Class A Convertible Preferred Units (collectively, “ Senior Units ”). The Class A Convertible Preferred Units shall rank pari passu with the Common Units with respect to distributions as set forth in Section 4.3.2 below.

4.3.2       Cumulative Distributions .    Upon the payment of any distribution to the holders of any Junior Units or Common Units (but subject to the rights of any applicable Senior Units), each Class A Convertible Preferred Unit shall be entitled to distributions at an annual rate of (a) 1.0% of the Class A Convertible Preferred Unit Liquidation Preference Amount per annum from the date of issuance of such Class A Convertible Preferred Unit (adjusted for any stock split, stock dividend or distribution, reclassification, reorganization, consolidation or similar change or event) up to (but not including) January          , 2008, (b) 2.0% of the Class A Convertible Preferred Unit Liquidation Preference Amount per annum from January          , 2008 (adjusted for any stock split, stock dividend or distribution, reclassification, reorganization, consolidation or similar change or event) up to (but not including) January     , 2009, (c) 3.0% of the Class A Convertible Preferred Unit Liquidation Preference Amount per annum from January          , 2009 (adjusted for any stock split, stock dividend or distribution, reclassification, reorganization, consolidation or similar change or event) up to (but not including) the third anniversary of such date of issuance, and (d) 4.0% of the Class A Convertible Preferred Unit Liquidation Preference Amount per annum from and after January          , 2010 (adjusted for any stock split, stock dividend or distribution, reclassification, reorganization, consolidation or similar change or event) (collectively, the “ Class A Preferred Distributions ”). Such distributions shall accumulate (accrue) from day to day, and shall be paid in cash on each anniversary of the date of issuance of such Class A Convertible Preferred Unit. All Class A Preferred Distributions under this Section 4.3.2 shall be cumulative so that if such Distributions in respect of any distribution period shall not have been paid on or declared and set apart for all Class A Convertible Preferred Units at the time outstanding, the deficiency shall be fully paid on or declared and set apart for such Class A Convertible Preferred Units before the Partnership makes any distribution (as hereinafter defined) to the holders of any other Partnership Units (other than Senior Units and other than Pari Passu Units (provided Class A Preferred Distributions shall be paid simultaneously with distributions to Pari Passu Units pro rata in accordance with their aggregate accumulated and unpaid distributions)).

4.3.3       Liquidation Preference .    Subject to the rights of any applicable Senior Units, in the event of (i) a Liquidating Event, or (ii) the merger, consolidation, reorganization or other combination of the Partnership with or into another entity (any such

 

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event, an “ Optional Liquidation Preference Event ”), the holders of Class A Convertible Preferred Units shall be entitled to receive, out of the assets of the Partnership, an amount per Class A Convertible Preferred Unit equal to the Class A Convertible Preferred Unit Liquidation Preference Amount plus all accumulated or declared but unpaid Class A Preferred Distributions, before any payment shall be made or any assets distributed to the holders of Common Units or Junior Units but following any payment to be made or any assets to be distributed to any Senior Units and concurrent with any Pari Passu Units. With respect to an Optional Liquidation Preference Event, each holder of Class A Convertible Preferred Units will have the option, in such holder’s sole discretion, to exercise its right to receive the Class A Preferred Liquidation Preference plus all declared but unpaid Class A Preferred Distributions by delivering written notice to the Partnership of such election. If, in the event of a Liquidating Event or an Optional Liquidation Preference Event, the assets of the Partnership are insufficient to pay the total aggregate Class A Convertible Preferred Unit Liquidation Preference Amount plus any accumulated and declared and unpaid Class A Preferred Distributions (in the case of an Optional Liquidation Preference Event, to those electing holders) and aggregate amounts, if any, to which the Pari Passu Units would be entitled upon such Liquidating Event, the holders of such Class A Convertible Preferred Units shall share pro rata with all Pari Passu Units outstanding in any such distribution in proportion to the full amounts to which they would otherwise be respectively entitled (i.e., the amount to be distributed to the holders of the Class A Convertible Preferred Units shall be equal to the product of (i) the amount available for distribution, multiplied by (ii) a fraction, the numerator of which is the aggregate Class A Convertible Preferred Unit Liquidation Preference Amount plus any accumulated and declared and unpaid Class A Preferred Distributions (in the case of an Optional Liquidation Preference Event, the aggregate Class A Convertible Preferred Unit Liquidation Preference Amount plus any accumulated and declared and unpaid Class A Preferred Distributions of the electing holders) and the denominator of which is the sum of the aggregate Class A Convertible Preferred Unit Liquidation Preference Amounts plus any accumulated and declared and unpaid Class A Preferred Distributions (in the case of an Optional Liquidation Preference Event, the aggregate Class A Convertible Preferred Unit Liquidation Preference Amount of the electing holders plus any accumulated and declared and unpaid Class A Preferred Distributions) and the aggregate amounts, if any, to which the Pari Passu Units would be entitled upon such Liquidating Event). All amounts distributed to any holder of Class A Convertible Preferred Units shall be in cash to the extent cash is available, unless otherwise previously consented to in writing by such holder.

4.3.4       Optional Conversion .    Commencing on the Class A Unlock Date, each Class A Convertible Preferred Unit shall be convertible, at the option of the holder thereof, at any time and from time to time, and without the payment of additional consideration by the holder thereof, into such number of fully paid and nonassessable Common Units equal to the Class A Convertible Preferred Unit Conversion Factor.

4.3.5       Mandatory Conversion .    Commencing on the fourth anniversary of the issuance of the Class A Convertible Preferred Units, in the event that (i) the product of (a) the Common Unit Redemption Factor multiplied by (b) the Market Price of the Common Shares is greater than (ii) one hundred twenty-five percent (125%) of the Class A Conversion Price during twenty (20) days out of any thirty (30) consecutive trading days then the Partnership may require any holder of Class A Convertible Preferred Units to convert each of his, her or its Class A

 

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Convertible Preferred Units into such number of fully paid and nonassessable Common Units equal to the Class A Convertible Preferred Unit Conversion Factor.

4.3.6       No Fractional Units .    No fractional Common Units shall be issued upon conversion of the Class A Convertible Preferred Unit. In lieu of any fractional shares to which the holder would otherwise be entitled, the Partnership shall pay cash equal to such fraction multiplied by the Class A Conversion Price. Whether or not fractional Common Units would be issuable upon such conversion shall be determined on the basis of the total number of Class A Convertible Preferred Units the holder is at the time converting into Common Units and the aggregate number of Common Units issuable upon such conversion.

4.3.7       Notice of Conversion (Optional) .    In order for a holder of Class A Convertible Preferred Units to voluntarily convert shares of Class A Convertible Preferred Units into Common Units, such holder shall deliver to the Partnership’s Transfer Agent written notice (“ Notice of Conversion ”) that such holder elects to convert all or any number of the shares of the Class A Convertible Preferred Units represented by such certificate or certificates and, if applicable, any event on which such conversion is contingent. A Notice of Conversion shall state such holder’s name or the names of the nominees in which such holder wishes the certificate or certificates for Common Units to be issued. The close of business on the date of receipt by the Transfer Agent of such Notice of Conversion shall be the time of conversion (the “ Conversion Time ”), and the Common Units issuable upon conversion of the shares represented by such certificate shall be deemed to be outstanding of record as of such date. As soon as reasonably practicable following the Conversion Time and in any event within three business days following the Conversion Time, the holder of Class A Convertible Preferred Units shall surrender the certificate or certificates for such shares of Class A Convertible Preferred Units (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Partnership to indemnify the Partnership against any claim that may be made against the Partnership on account of the alleged loss, theft or destruction of such certificate), at the office of the Transfer Agent. If required by the Partnership, certificates surrendered for conversion shall be endorsed or accompanied by a written instrument or written instruments of transfer, in form satisfactory to the Partnership, duly executed by the registered holder or such holder’s attorney duly authorized in writing. The Partnership shall, as soon as practicable after the Conversion Time, and in no event later than the third business day following the Conversion Time, issue and deliver or cause its Transfer Agent to issue and deliver to such holder of Class A Convertible Preferred Units, or to such holder’s nominees, a certificate or certificates for the number of full Common Units issuable upon such conversion in accordance with the provisions hereof, a certificate for the number (if any) of the Class A Convertible Preferred Units represented by the surrendered certificate that were not converted into Common Units, and cash as provided in Section 4.3.6 above in lieu of any fraction of a Common Unit otherwise issuable upon such conversion and payment of any accumulated or declared but unpaid distributions on the Class A Convertible Preferred Units converted.

4.3.8       Notice of Conversion (Mandatory) .    In the event the Partnership exercises its right under Section 4.3.5 to require any holder of Class A Convertible Preferred Units to convert each of his, her or its Class A Convertible Preferred Units into Common Units, then the Partnership may provide by notice to such Limited Partner that the Partnership has elected to

 

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exercise its rights under Section 4.3.5 and may treat such Limited Partner as a party who has delivered a Notice of Conversion pursuant to Section 4.3.7 above. Such notice given by the Partnership to a Limited Partner pursuant to this Section 4.3.8 shall be treated as if it were a Notice of Conversion delivered to the General Partner by such Limited Partner. For purposes of this Section 4.3.8 , other than with respect to the delivery of the Notice of Conversion (which is dealt with in the preceding two sentences), the provisions of Section 4.3.7 shall apply, mutatis mutandis, with the “Conversion Time” being the date that the Partnership issues a Notice of Conversion.

 

4.4

Issuances of Additional Partnership Interests .

4.4.1       General .    The General Partner is hereby authorized to cause the Partnership to issue additional Partnership Interests, in the form of Partnership Units, for any Partnership purpose, at any time or from time to time, to the Partners (including the General Partner) or to other Persons, and to admit such Persons as Additional Limited Partners, for such consideration and on such terms and conditions as shall be established by the General Partner in its sole and absolute discretion, all without the approval of any Limited Partners. Without limiting the foregoing, the General Partner is expressly authorized to cause the Partnership to issue Partnership Units (i) upon the conversion, redemption or exchange of any Debt, Partnership Units or other securities issued by the Partnership, (ii) for less than fair market value, so long as the General Partner concludes in good faith that such issuance is in the best interests of the General Partner and the Partnership, (iii) in connection with any merger of any other Person into the Partnership or any Subsidiary of the Partnership if the applicable merger agreement provides that Persons are to receive Partnership Units in exchange for their interests in the Person merging into the Partnership or any Subsidiary of the Partnership, (iv) in connection with any acquisition of real property or other assets and (v) that are Senior Units, Pari Passu Units or Junior Units. Subject to the Act, any additional Partnership Interests may be issued in one or more classes, or one or more series of any of such classes, with such designations, preferences and relative, participating, optional or other special rights, powers and duties as shall be determined by the General Partner, in its sole and absolute discretion without the approval of any Limited Partner, and set forth in this Agreement or a written document thereafter attached to and made an exhibit to this Agreement (each, a “ Partnership Unit Designation ”). Without limiting the generality of the foregoing, the General Partner shall have authority to specify (a) the allocations of items of Partnership income, gain, loss, deduction and credit to each such class or series of Partnership Interests; (b) the right of each such class or series of Partnership Interests to share in Partnership distributions; (c) the rights of each such class or series of Partnership Interests upon dissolution and liquidation of the Partnership; (d) the voting rights, if any, of each such class or series of Partnership Interests; and (e) the conversion, redemption or exchange rights applicable to each such class or series of Partnership Interests.

4.4.2       Issuances to the General Partner .    No additional Partnership Units shall be issued to the General Partner unless (i) the additional Partnership Units are issued to all Partners in proportion to their respective Percentage Interests with respect to the class of Partnership Units so issued, (ii) (a) the additional Partnership Units are (x) Common Units issued in connection with an issuance of Common Shares, or (y) Partnership Units (other than Common Units) issued in connection with an issuance, conversion or exercise of Preferred Shares, Other Securities or other interests in the General Partner (other than Common Shares), which Preferred

 

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Shares, Other Securities or other interests have designations, preferences and other rights, terms and provisions that are substantially the same as the designations, preferences and other rights, terms and provisions of the additional Partnership Units issued to the General Partner, and (b) the General Partner contributes or otherwise causes to be transferred to the Partnership the cash proceeds or other consideration received in connection with the issuance of such Common Shares, Preferred Shares, Other Securities or other interests in the General Partner, (iii) the additional Partnership Units are issued upon the conversion, redemption or exchange of Debt, Partnership Units or other securities issued by the Partnership, or (iv) the additional Partnership Units are issued pursuant to Section 4.5.2 or Section 4.6 .

4.4.3       No Preemptive Rights .    No Person, including any Partner or Assignee, shall have any preemptive, preferential, participation or similar right or rights to subscribe for or acquire any Partnership Interest.

 

4.5

Additional Funds and Capital Contributions .

4.5.1       General .    The General Partner may, at any time and from time to time, determine that the Partnership requires additional funds (“ Additional Funds ”) for the acquisition or development of additional Properties, for the redemption of Partnership Units or for such other purposes as the General Partner may determine in its sole and absolute discretion. Additional Funds may be obtained by the Partnership, at the election of the General Partner, in any manner provided in, and in accordance with, the terms of this Section 4.5 without the approval of any Limited Partners.

4.5.2       Additional Capital Contributions .    The General Partner, on behalf of the Partnership, may obtain any Additional Funds by accepting Capital Contributions from any Partners or other Persons. In connection with any such Capital Contribution (of cash or property), the General Partner is hereby authorized to cause the Partnership from time to time to issue additional Partnership Units (as set forth in Section 4.3 above) in consideration therefor and the Percentage Interests of the General Partner and the Limited Partners shall be adjusted appropriately to reflect the issuance of such additional Partnership Units.

4.5.3        Loans by Third Parties .    The General Partner, on behalf of the Partnership, may obtain any Additional Funds by causing